Chapter 4 - Automatic Acquisition of Citizenship after Birth (INA 320)

A. General Requirements for Automatic Acquisition of Citizenship after Birth

The Child Citizenship Act of 2000 (CCA) amended INA 320 and removed INA 321 to create only one statutory provision and method for children in the United States to automatically acquire citizenship after birth.^[1] According to INA 320, a child born outside of the United States automatically becomes a U.S. citizen when all of the following conditions have been met on or after February 27, 2001:^[2]

• The person is a child^[3] of a parent who is a U.S. citizen by birth or through naturalization (including an adoptive parent);^[4]
• The child is under 18 years of age;^[5]
• The child is a lawful permanent resident (LPR);^[6] and
• The child is residing^[7] in the United States in the legal and physical custody of the U.S. citizen parent.^[8]

There is no specific order in which the conditions of the law must be satisfied for citizenship, so long as all conditions are met at a single point in time before the child’s 18th birthday. A person born outside the United States is presumed to be a noncitizen.^[9] As such, the person claiming U.S. citizenship has the burden of proof^[10] to establish by a preponderance of the evidence^[11] that they have met all requirements for citizenship.

B. Child in Legal and Physical Custody of U.S. Citizen Parent

To automatically acquire citizenship through a U.S. citizen parent under INA 320, the child must reside in the legal and physical custody of the U.S. citizen parent while under the age of 18 years.^[12]

1. Legal Custody

Legal custody refers to the responsibility for and authority over a child.^[13] Legal custody is determined according to the relevant jurisdiction’s law or is determined by a court decree or order. If there is a judicial determination^[14] or a statutory grant of custody, then the parent to whom custody has been granted has legal custody of the child for INA 320 purposes.^[15]

The child’s parents (or parent) who are included on the birth certificate^[16] are generally presumed to have legal custody of the child unless there is evidence to the contrary, such as a court order.^[17]

The following sections explain how USCIS determines if a U.S. citizen parent has legal custody of a child for purposes of INA 320 in various situations.

Parents Are Married to Each Other

Unless there is evidence to the contrary, USCIS presumes that a U.S. citizen parent has legal custody of a biological child where the biological child has lived, or lives with married parents who live in marital union. This applies regardless of whether the child was born in wedlock.^[18]

Child Residing with Surviving Parent

Unless there is evidence to the contrary, USCIS considers a child residing with a U.S. citizen surviving parent to be in the legal custody of the U.S. citizen surviving parent, if the other parent is deceased.^[19]

Child Born Out of Wedlock and Parents Never Married Each Other

Unless there is evidence to the contrary, USCIS considers the parent with whom the biological child is residing (or did reside with before age 18) to have legal custody of the child where the child was born out of wedlock and the parents never married each other.^[20] If the parent is a U.S. citizen father, the U.S. citizen father must also have legitimated^[21] the child for the presumption of legal custody to apply.^[22]

Divorce or Legal Separation of the Parents

In the case of a child of divorced or legally separated parents, USCIS considers a U.S. citizen parent to have legal custody of a child, for the purpose of INA 320, where a court with jurisdiction has awarded primary care, control, and maintenance of the child to the U.S. citizen parent under the laws of the state or country of residence.^[23]

State law determines whether a parent has legal custody of a child.^[24] As such, officers first look at the most recent judicial determination following a legal separation or a divorce in assessing legal custody for citizenship purposes. For purposes of INA 320, a judicial custody order can only be changed by a subsequent judicial proceeding.

Actual Uncontested Custody

If a child’s parents divorced or legally separated, but the decree of divorce or legal separation order is silent on the custody determination and the relevant jurisdiction’s law does not determine which parent had custody of the children, then USCIS considers the U.S. citizen parent who had actual uncontested (physical) custody of the child to have had legal custody of the child.^[25] Evidence showing the child was living with the U.S. citizen parent establishes “actual, uncontested custody.”^[26]

Joint Custody

Unless there is evidence to the contrary, both parents have legal custody for purposes of INA 320, where the child’s parents are legally separated or divorced, and a court or other appropriate governmental entity has awarded the parents joint custody of the child.^[27]

USCIS does not require a U.S. citizen parent to have sole custody to demonstrate legal custody of the child for purposes of INA 320.

Private Custody Agreement

Any private custody agreement between the parents is not an award of responsibility for and authority over the primary care, control, and maintenance of a minor child by a court of law or other appropriate government entity. As such, private custody agreements between parents generally do not impact the judicial custody determination following the divorce or legal separation for purposes of citizenship claims.^[28] However, an applicant may provide documentation of a state law that recognizes an informal custody agreement between parents. If such a state law exists, an informal custody agreement may determine which parent has legal custody, if there is no court decree or the court decree is silent as to a formal custody agreement.^[29]

Nunc Pro Tunc Custody Orders

Sometimes, evidence supporting a claim of citizenship may include a nunc pro tunc^[30] correction of a judicial custody order that retroactively modifies a legal custody order. For purposes of derivative citizenship, USCIS does not recognize nunc pro tunc custody orders if entered after the child’s 18th birthday that change the legal custody order from the time it was entered.^[31]

Other Circumstances

There may be other factual circumstances under which USCIS may find the U.S. citizen parent to have legal custody for purposes of INA 320. These circumstances are determined on a case-by-case basis.^[32]

2. Physical Custody

INA 320 also requires the child to reside in the physical custody of the U.S. citizen parent.^[33] This requirement is “to ensure that the child’s ‘real interests’ are in the United States through a genuine connection between the U.S. citizen parent and that parent’s child.”^[34] In the context of derivative citizenship, the term “physical custody” means actual residence with the parent.^[35] The term “residence” means a person’s principal, actual dwelling place in fact, without regard to intent.^[36] For purposes of INA 320, the parent the child resides with, or physically lives with, has physical custody of the child.

Evidence Establishing Physical Custody Requirement Under INA 320

As mentioned above, the child automatically acquires U.S. citizenship when the child meets all requirements before reaching the age of 18. This means that the evidence to establish that the child was residing in the physical custody of the U.S. citizen parent must be from the time when the child was under 18 years of age.

Evidence that may establish the child’s residence, and therefore physical custody, with the U.S. citizen parent can include any of the following:

• The U.S. citizen parent’s address on the application and in the record matches the address of the child (while the child was under 18 years of age); 
• The child’s school transcripts, records, or attendance reports showing the child’s residential address to be the same as the U.S. citizen parent;
• The child’s medical, hospital, or vaccination records showing the child’s residential address to be the same as the U.S. citizen parent;
• The U.S. citizen parent’s federal income tax transcripts showing that the child was listed as a dependent household member for tax purposes;
• A notarized affidavit from the U.S. citizen parent attesting that the child has lived in that parent’s physical custody, specifying the period of time when the child lived with the U.S. parent; or
• A notarized affidavit from the non-U.S. citizen parent attesting that the child has lived in the physical custody of the U.S. citizen parent, specifying the period of time when the child lived with the U.S. parent.

C. Children of Armed Forces Members or U.S. Government Employees (or their Spouses)^[37]

On March 26, 2020, the Citizenship for Children of Military Members and Civil Servants Act was enacted into law.^[38] This Act provides that, under certain conditions, children of U.S. armed forces members or U.S. government employees (or their spouses)^[39] who are residing outside the United States acquire citizenship under INA 320.^[40] This applies to such children who were under the age of 18 on that date.^[41]

A child born outside of the United States acquires automatic citizenship under INA 320 in cases where the child is an LPR and is in the legal and physical custody of his or her U.S. citizen parent who is:^[42]

• Stationed and residing outside of the United States as a member of the U.S. armed forces;^[43] 
• Stationed and residing outside of the United States as an employee of the U.S. government;^[44] or
• The spouse residing outside the United States in marital union^[45] with a U.S. armed forces member or U.S. government employee who is stationed outside of the United States.^[46]

In cases involving the child of a U.S. armed forces member residing outside the United States, the child must be authorized to accompany and reside with the U.S. armed forces member as provided by the member’s official orders.^[47] If the spouse of the U.S. armed forces member is the qualifying U.S. citizen parent, the spouse must be authorized to accompany and reside with the U.S. armed forces member as provided by the member’s official orders.^[48]

The official orders that authorize a child and, if applicable, his or her U.S. citizen parent, to accompany and reside with the member of the U.S. armed forces outside of the United States are a statutory requirement for that child to acquire citizenship under INA 320. If the child (and, if applicable, U.S. citizen parent) being added to the orders is the last action for the child to qualify for acquisition, then the date of the order becomes the date of acquisition. There is no statutory requirement for children of U.S. government employees or their spouses to be included on the employee’s official orders.

The child of a U.S. armed forces member or a U.S. government employee (or his or her spouse) must meet the general requirements under INA 320(a)(1)-(2) in addition to being an LPR residing in the legal and physical custody of his or her U.S. citizen parent. All statutory requirements must be met before the child reaches the age of 18, including, if applicable, the issuance of the official orders for the child (and, if applicable, the U.S. citizen parent) to accompany and reside with the U.S. armed forces member who is stationed outside the United States.

D. Application for Certificate of Citizenship (Form N-600)

1. Submission of Application

A person born outside the United States who automatically acquires U.S. citizenship is not required to have evidence of such status. However, if the person seeks documentation of U.S. citizenship status, the person may file an Application for Certificate of Citizenship (Form N-600) with USCIS.^[49]

The Secretary of Homeland Security has jurisdiction over the administration and enforcement of the INA within the United States, and the Secretary of State has jurisdiction over claims of U.S. citizenship made by persons who are abroad.^[50] Therefore, generally, an Application for Certificate of Citizenship is submitted by persons who claim U.S. citizenship and are present within the United States. However, USCIS accepts a Form N-600 filed by a person who does not live in the United States, but USCIS does not adjudicate the application on the merits until the person is present in the United States in order to ensure that USCIS has jurisdiction over the application.^[51]

A person who is at least 18 years of age may submit the Application for Certificate of Citizenship on the person’s own behalf. There is no filing fee for Form N-600 for current or former members of the U.S. armed forces if they are filing on their own behalf. A U.S. citizen parent or a legal guardian must submit the application for a child who has not reached the age of 18 years.^[52]

USCIS issues proof of U.S. citizenship in the form of a Certificate of Citizenship if the Application for Certificate of Citizenship (Form N-600) is approved and the person takes the Oath of Allegiance, if required to do so.^[53]

USCIS does not mail Certificates of Citizenship outside the United States except when a military member is issued a Certificate of Citizenship under INA 320^[54] or a military member’s dependent child naturalizes under INA 322(d).

2. U.S. Passport or Consular Report of Birth Abroad as Evidence of Citizenship

A person may also apply for a U.S. passport with the U.S. Department of State (DOS) to serve as evidence of their U.S. citizenship.^[55] A parent or legal guardian of a U.S. citizen child born outside the United States may also apply to the local U.S. embassy or consulate for a Consular Report of Birth Abroad (CRBA or Form FS-240).^[56] A U.S. passport is valid for a limited time as established by DOS policies and standards on passport issuance.^[57] Once a passport is expired, it is no longer conclusive evidence of citizenship.^[58] Neither a CRBA nor a Certificate of Citizenship expires.

A valid, unexpired U.S. passport or a CRBA serves as evidence of a person’s U.S. citizenship.^[59] An applicant for a Certificate of Citizenship may submit a valid and unexpired U.S. passport or a CRBA as evidence of U.S. citizenship.^[60] The officer must review the valid U.S. passport or CRBA and the documentation submitted with the application and contained in the record to determine if it was issued properly.

The officer approves the Application for Certificate of Citizenship if the applicant is a U.S. citizen and meets all requirements.

3. Request to Revoke U.S. Passport or Cancel Consular Report of Birth Abroad

If the officer determines that the applicant is not a U.S. citizen or has evidence indicating that a U.S. passport or CRBA submitted as evidence was obtained or issued illegally, fraudulently, or erroneously, the officer reviews the case with USCIS counsel. Then, if appropriate, the officer may request that DOS revoke the U.S. passport or cancel the CRBA.^[61]

Only DOS has the authority to revoke a U.S. passport or cancel a CRBA.^[62] DOS may revoke a U.S. passport or cancel a CRBA in cases where the passport or CRBA was obtained or issued illegally, fraudulently, or erroneously.^[63]

USCIS provides the following information to DOS in the passport revocation or CRBA cancellation request:

• The applicant’s complete biographic information, including name and any known aliases;
• The applicant’s last known address;
• All previous unexpired U.S. passport numbers and alien registration numbers (A-numbers);
• A copy of the CRBA or of the biographical page of the U.S. passport submitted as evidence (if available);
• An explanation for requesting revocation or cancellation, including reasons for the request, analysis of the facts and dates used in determining that the passport or CRBA should be revoked or cancelled, and evaluation of evidence indicating that the applicant did not acquire U.S. citizenship;
• Copies of all documentary evidence in support of the request, including certified translations of any documents written or originally prepared in a foreign language; and
• The contact information of the USCIS office making the request.

Adjudication of Application with Revocation or Cancellation Request

After reviewing the case on the merits and requesting a revocation of a U.S. passport or a cancellation of a CRBA from DOS, the officer generally may not complete the adjudication of the Application for Certificate of Citizenship until DOS responds.

If DOS notifies USCIS that it does not intend to revoke the passport or cancel the CRBA, USCIS approves the Application for Certificate of Citizenship.^[64] However, in cases with unusual or complex circumstances, USCIS may further consult with DOS.

If USCIS has evidence indicating that a U.S. passport submitted as evidence was obtained or issued illegally, fraudulently, or erroneously, and the passport was valid at the time of filing, but is expired at the time of adjudication, the officer should review the case with USCIS counsel and DOS before adjudicating.^[65]

If DOS revokes the U.S. passport or cancels the CRBA, the officer denies the application in cases where the applicant does not otherwise meet the eligibility requirements for issuance of a Certificate of Citizenship.

4. Photographs and Signature

USCIS may require the applicant (person seeking the Certificate of Citizenship), regardless of age, to appear at a local Application Support Center (ASC)^[66] for photograph and signature submission.^[67] A parent or legal guardian may sign for a child under the age of 14.^[68] The parent or legal guardian of the person for whom the Certificate of Citizenship is sought does not submit any photographs of themself in connection with the Form N-600.

USCIS does not submit information collected in connection with Form N-600 to the Federal Bureau of Investigation (FBI) for a background check.

Photograph Submission Outside the United States

A person seeking a Certificate of Citizenship who is residing outside the United States only needs to submit two passport-style photographs with the properly submitted application. USCIS does not schedule overseas applicants for an ASC appointment. USCIS coordinates with military service members who are stationed outside of the United States, if necessary, to secure photographs.

Failure to Appear for the ASC Appointment 

USCIS may consider the Form N-600 abandoned in cases where the person seeking a Certificate of Citizenship fails to appear for the ASC appointment, unless, by the appointment time, USCIS receives a change of address or rescheduling request that USCIS concludes warrants excusing the failure to appear.^[69]

If USCIS denies the application due to abandonment, the person eligible for the Certificate of Citizenship, or the parent or legal guardian of the person eligible for the Certificate of Citizenship, or the parent or legal guardian who filed on behalf of a child seeking a Certificate of Citizenship, may submit a motion to reopen by filing a Notice of Appeal or Motion (Form I-290B).^[70]

USCIS does not deny an application for abandonment for failure to provide photographs if USCIS has evidence that the applicant is a member of the U.S. armed forces who is permanently or temporarily outside the United States and unable to provide photographs or appear to submit a photograph and signature for reasons related to the individual's military service. USCIS coordinates with military service members in these circumstances.

E. Documentation and Evidence

The applicant must submit the following required documents unless such documents are already contained in the USCIS administrative record or do not apply:^[71]

• The child's birth certificate or record. 
• Marriage certificate of child's parents, if applicable.
• Proof of termination of any previous marriage of each parent if either parent was previously married and divorced or widowed, for example: 
  • Divorce Decree; or 
  • Death Certificate.
• Evidence of United States citizenship of parent: 
  • Birth Certificate; 
  • Naturalization Certificate; 
  • Consular Report of Birth Abroad (FS-240); 
  • A valid unexpired U.S. passport; or 
  • Certificate of Citizenship.
• Documents verifying legitimation according to the laws of the child's residence or domicile or biological U.S. citizen father's residence or domicile if the child was born out of wedlock. 
• Documentation that the U.S. citizen parent had legal custody of the child while the child was under the age of 18 years in the case of divorce, legal separation, or adoption.^[72]
• Evidence that establishes that the child was residing in the United States in the physical custody of the U.S. citizen parent while under the age of 18 years.^[73]
• If applicable, official orders (that is, a Permanent Change of Station (PCS)) from the respective department that authorized the child of the U.S. armed forces member, or the child of the spouse of such member and the spouse,^[74] to accompany the U.S. citizen parent.
• Copy of Permanent Resident Card or Alien Registration Receipt Card or other evidence of lawful permanent resident status, such as an I-551 stamp in a valid foreign passport or travel document issued by USCIS.
• Copy of the full, final adoption decree, if applicable.^[75]
• Evidence of all legal name changes, if applicable, for the child and U.S. citizen parent.

An applicant does not need to submit documents that were submitted in connection with:

• An immigrant visa application retained by the American Consulate for inclusion in the immigrant visa package; or
• An immigrant petition or application included in a USCIS administrative file.

If necessary, an officer may request additional documentation to make a decision on the application.

F. Citizenship Interview and Waiver

In general, an applicant must appear in person for an interview before a USCIS officer after filing an Application for Certificate of Citizenship. This includes the U.S. citizen parent or parents if the application is filed on behalf of a child under 18 years of age.^[76] USCIS, however, may waive the interview requirement if all the required documentation necessary to establish the applicant's eligibility is already included in USCIS administrative records or if the required documentation is submitted along with the application.^[77]

G. Decision and Oath of Allegiance

1. Approval of Application, Oath of Allegiance, and Waiver for Children under 14 Years of Age

If the applicant meets all the requirements for citizenship, USCIS approves the Form N-600. USCIS determines the date of citizenship based on when the applicant met the last requirement.

If an officer approves the Form N-600, USCIS administers the Oath of Allegiance before issuing a Certificate of Citizenship.^[78]

However, the INA permits USCIS to waive the taking of the Oath of Allegiance if USCIS determines the person is unable to understand its meaning.^[79] USCIS has determined that children under the age of 14 are generally unable to understand the meaning of the oath.

Accordingly, USCIS waives the oath requirement for a child younger than 14 years of age. If USCIS waives the oath requirement, USCIS issues a Certificate of Citizenship after the officer approves the application.

If an applicant does not take the Oath of Allegiance and is not eligible for a waiver, USCIS cannot issue a Certificate of Citizenship.^[80]

2. Denial of Application

If an officer denies the Certificate of Citizenship application, the officer must notify the applicant in writing of the reasons for denial and include information on the right to appeal in the notice.^[81] An applicant may file an appeal within 30 calendar days after service of the decision (33 days if the decision was mailed).

Footnotes 

[^ 1] See INA 320. See Appendix: Nationality Chart 3 - Derivative Citizenship of Children [12 USCIS-PM H.3, Appendices Tab].

[^ 2] February 27, 2001 is the effective date for these CCA amendments.

[^ 3] For the definition of a child, see Chapter 2, Definition of Child and Residence for Citizenship and Naturalization [12 USCIS-PM H.2].

[^ 4] For cases based on an adoptive relationship, the requirements of INA 101(b)(1)(E), INA 101(b)(1)(F), or INA 101(b)(1)(G) must be met. For guidance on citizenship for adopted children, see Volume 5, Adoptions, Part F, Citizenship for Adopted Children [5 USCIS-PM F].

[^ 5] USCIS considers a child to be under the age of 18 years even if the last condition for acquisition of citizenship falls on the day of the child’s 18th birthday. See Matter of L. M. and C. Y. C., 4 I&N Dec. 617 (BIA 1952).

[^ 6] A person is generally considered to be an LPR once USCIS approves the adjustment application or once the person enters the United States with an immigrant visa. See INA 245(b). For certain classifications, however, the effective date of becoming an LPR is a date that is earlier than the actual approval of the status (commonly referred to as a “rollback” date). See Part D, General Naturalization Requirements, Chapter 2, LPR Admission for Naturalization, Section A, LPR at Time of Filing and Naturalization [12 USCIS-PM D.2(A)]. A person who is born a U.S. national and is the child of a U.S. citizen may establish eligibility for a Certificate of Citizenship without having to establish LPR status.

[^ 7] For the definition of residence, see Chapter 2, Definition of Child and Residence for Citizenship and Naturalization, Section E, Definitions of U.S. Residence and Physical Presence [12 USCIS-PM H.2(E)].

[^ 8] See INA 320. See 8 CFR 320.2. Certain children of U.S. armed forces members or U.S. government employees (or their spouses) who are residing outside the United States may acquire citizenship under INA 320. See Section C, Children of Armed Forces Members or U.S. Government Employees (or their Spouses) [12 USCIS‑PM H.4(C)]. See INA 320(c) (added by the Citizenship for Children of Military Members and Civil Servants Act, Pub. L. 116-133 (PDF) (March 26, 2020)).

[^ 9] See Matter of Tijerina-Villarreal (PDF), 13 I&N Dec. 327, 330 (BIA 1969).

[^ 10] See INA 341(a). See 8 CFR 341.2(c).

[^ 11] To meet this burden, the child, or the U.S. citizen parent or legal guardian acting on the child’s behalf, must submit relevant, probative, and credible evidence that the claim is “probably true” or “more likely than not.” See Matter of E-M- (PDF), 20 I&N Dec. 77 (Comm. 1989).

[^ 12] The U.S. citizen parent is not required to have legal and physical custody of the child when the child seeks a certificate of citizenship. Rather, USCIS must determine if the parent had legal and physical custody of the child at any time while the child was under the age of 18 years and all the other requirements for citizenship had been met.

[^ 13] See 8 CFR 320.1.

[^ 14] Determination of custody for citizenship purposes may be different than the custody determination for adoptions. For more information, see Volume 5, Adoptions [5 USCIS-PM].

[^ 15] See Matter of M-, 3 I&N Dec. 850 (BIA 1950).

[^ 16] Officers must also review birth certificates that have been amended following the initial registration.